Court name
High Court Main Division
Case name
Katumbe v Kaiyamo
Media neutral citation
[2013] NAHCMD 21
Judge
Van Niekerk J













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








Case no: A 250/2012








JUDGMENT













In the matter between:








AURECON NAMIBIA (PTY)
LTD
..................................................................APPLICANT



and








THE ROADS AUTHORITY
............................................................
FIRST
RESPONDENT








THE MINISTER OF WORKS



TRANSPORT &
COMMUNICATION ........................................SECOND
RESPONDENT








Neutral citation:
Aurecon Namibia (Pty) Ltd v The Roads Authority (A
250/2012) [2013] NAHCMD 21 (28 January 2013)








Coram: UEITELE J








Heard: 19
November 2012



Delivered: 28
January 2013








Flynote: Practice
- Applications and motions - Urgent application - Abridgment of times
prescribed and acceleration of hearing - Good cause - What constitute
-Possible financial prejudice - Not entitled to preference.








Summary: The
applicant and the first respondent concluded an agreement (on 17
November 2000) in terms of which the applicant had to render services
to the respondent for the detailed design, documentation, site
supervision and contract management for the Windhoek -
Okahandja passing lanes and other improvements. The agreement
regulated two phases of the services to be rendered, namely the
design phase, and the contract management and site supervision phase.








The applicant executed
the first phase of the agreement and only the second phase was still
to be implemented. It is, however, common cause that as from June
2005 the applicant was not in the financial position to implement the
second phase of the agreement. The agreement was thus dormant for a
period of over six years. During 2012 the first respondent revised
the services that need to be render for the upgrade of the Okahandja
– Windhoek roads. It informed the applicant that it is
cancelling the agreement concluded during November 2000, called for
new tenders to render services with respect to the upgrade of the
Okahandja – Windhoek roads.








Applicant disputed the
first respondent’s right to cancel the agreement and thus
sought to interdict the first respondent from awarding tender with
number RA/CS-CR/06-2012 or any other tender for the detailed
investigation, detailed design, tender documentation, contract
management and site supervision for TR 901: Windhoek to Okahandja
(from MO0049 TO TO107/TO701) and the rehabilitation and upgrade to 4
lanes / 3 lanes to any other party








Held, That in the
circumstances of this case the commercial interest of the applicant
in this matter is not of such a nature as to render the matter
urgent.








Held, Mere lip
service to the requirements of Rule 6 (12) (b) will not do and an
applicant must make out a case in the founding affidavit to justify
the particular extent of the departure from the norm, which is
involved in the time and day for which the matter be set down.










ORDER





The application is struck
from the roll, with costs.















JUDGMENT





UEITELE J:



[1] In this matter the
applicant approached this court on an urgent basis, claiming the
following relief:



1.
Condoning the applicant’s non-compliance with the rules of this
Honourable Court and hearing this application for interim relief as
set out in prayers 2 & 3 below, on an urgent basis as envisaged
by rule 6(12) of the High Court rules.



2.
Interdicting and restraining first respondent to award tender with
number RA/CS-CR/06-2012 or any other tender for the detailed
investigation, detailed design, tender documentation, contract
management and site supervision for TR 901: Windhoek to Okahandja
(from MO0049 TO TO107/TO701) and the rehabilitation and upgrade to 4
lanes / 3 lanes to any other party.



3.
Interdicting the first respondent from taking any further step or
proceeding towards the implementation of any tender arising from the
submission of the tender referred to in prayer 2.1 above pending
proceedings to be instituted by the applicant against the respondents
for relief which will ensure that applicant’s contractual
rights as set out in the agreements annexed to the founding affidavit
marked “JK 1 TO JK 6” are enforced and protected.



4.
That the costs of this application shall be in the cause of the
proceedings to be instituted by the applicant against the first
respondent.’








[2] The brief background
to the applicant’s claim is that, on 17 November 2000, the
applicant and the first respondent (since the second respondent has
not opposed this matter I will, in this judgment, refer to the first
respondent as the respondent) concluded an agreement in terms of
which the applicant had to render services to the respondent for the
detailed design, documentation, site supervision and contract
management for the Windhoek - Okahandja passing lanes and other
improvements. The agreement regulated two phases of the services to
be rendered, namely the design phase, and the contract management and
site supervision phase. I will in this judgment refer to the
agreement signed on 17 November 2000 as the November 2000 agreement.



[3] During September 2001
the parties signed an appendix to the November 2000 agreement, the
purpose of the appendix was to extend the November 2000 agreement.
The agreement was again extended during January 2003. The applicant
completed the first phase of the November 2000 agreement, namely the
detailed design of the passing lanes.








[4] The second phase of
the November 2000 agreement (ie the tender process, appointment of a
contractor, the site supervision and contract management) is what
remained to be performed. From the allegations contained in the
affidavits it is common cause that since June 2005, the respondent
was not in the financial position to execute the second phase of the
November 2000 agreement. It thus follows that between June 2005 and
January 2012 nothing happened as regards the November 2000 agreement.
The applicant did not even direct any enquiry to the respondent as to
what the status of the agreement was.








[5] During August 2012
the applicant addressed a letter to the respondent in which letter
the applicant confirmed the existence of the November 2000 agreement.
Applicant alleges that the reason why it wrote the letter is because
it heard rumours that the first responded was considering to
re-allocate the services for the detailed design, documentation, site
supervision and contract management for the Windhoek- Okahandja
passing lanes and other improvements (by inviting new tenders).








[6] On 10 September 2012
the respondent addressed a letter to the applicant, in which letter
the respondent indicated that it is cancelling the November 2000
agreement. The applicant replied to that letter and denied the
respondent’s entitlement to cancel the agreement. During
September 2012, the respondent under Tender No RA/CS - CR/06-2012
invited tenders for the detailed design, tender documentation,
contract management and site supervision for TR 9/1, Windhoek (from
M00049 to T0 105) and TR 1/6: Windhoek to Okahandja (from M00049 to
T0107/T0 701) – Rehabilitation and upgrade to dual carriage 4
Lanes / 3 Lanes (Khomas and Otjozondjupa regions). The closing date
for the submission of tenders was set for 17 October 2012 at 11H30.
The applicant alleges that the tender invited by the respondent on 21
September 2012 is to execute substantially the same works as that
which is set out in the November 2000 agreement.








[7] Between 01 October
2012 and 12 October 2012 an exchange of letters took place between
the applicant’s legal practitioners and the respondent’s
legal practitioners. The applicant’s aim of addressing these
letters to the respondents, was to secure an undertaking by the
respondent that the consideration and award of the September 2012
tender will not take place until the dispute (between applicant and
respondent) with regard to the respondent’s right to cancel the
November 2000 agreement is resolved. When the applicant failed to
secure the undertaking, it instituted this application. The first
respondent opposed the relief sought on a number of bases, the first
one being that it denies that any ground of urgency exists. I will
now turn to consider this ground.








[8] It is now common
cause that, to ensure the smooth operation of the Courts, a body of
adjective law has evolved and much of that law is contained in the
rules of Court. Rule 6 of this court deals with applications. Rule 6
(12) specifically deals with the matter at hand. It provide as
follows:



(12)
(a) In urgent applications the court or a judge may dispense with the
forms and service provided for in these rules and may dispose of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable be in terms of
these rules) as to it seems meet.








(b)
In every affidavit or petition filed in support of any application
under paragraph (a) of this subrule, the applicant shall set forth
explicitly the circumstances which he or she avers render the matter
urgent and the reasons why he or she claims that he or she could not
be afforded substantial redress at a hearing in due course.’








[9]
It is clear that this rule entails two requirements, namely that the
applicant must explicitly set out the circumstances which render the
matter urgent, and secondly the reasons why the applicant claims that
he or she will not be afforded substantial redress at a hearing in
due course.
1








What
are the circumstances which render this matter urgent?




[10] The applicant has,
in its affidavit, set out the following circumstances as rendering
the matter urgent:



52
The applicant requires interim protection and relief by this
Honourable Court in the light of the eminent tender evaluation
process and the awarding of tender No RA/CS - CR/06-2012 . . . . An
action or arbitration in the normal course including exchange of
documents and pleadings according to the normal time periods provided
for in the rules of this Honourable Court or in accordance with the
arbitration procedure agreed upon, will cause the matter to be
finalized over a period of many months. If the interim relief is thus
not granted it may very be that the tender herein is awarded and be
commenced with by a third party when this review is finalized.



53
. . .



54
If the urgent interim relief is not granted in this matter, pending
the final outcome of main proceedings wherein the purported
cancellation of the agreement between the parties is challenged the
tender therein would have been awarded to a third party and will have
been commenced with and the applicant would have lost its rights in
respect thereof, not to mention the patrimonial damages the applicant
stands to suffer, which I am advised will in law be very difficult to
prove and recover. The harm and prejudice that the applicant would
suffer accordingly is indeed irreparable in the circumstances.’








[11] As regards the
second requirement the applicant simply states the following:



I
respectfully submit this application is urgent and that the applicant
cannot be afforded substantial redress at a hearing in due course.’








[12]
In the matter of
IL
& B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another;
Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another
2
Fagan J who delivered the
judgment of the Court said:



It
is clear from the requirements set out in Rules 27 and 6 (12) that
the Court's power to abridge the times prescribed and to accelerate
the hearing of the matters should be exercised with judicial
discretion and upon sufficient and satisfactory grounds being shown
by the applicants. The major considerations normally and in these two
applications are three in number,
viz
the
prejudice that applicants might suffer by having to wait for a
hearing in the ordinary course; the prejudice that other litigants
might suffer if the applications were given preference; and the
prejudice that respondents might suffer by the abridgment of the
prescribed times and an early hearing.’
3








[13] In this matter the
applicant’s cause of complaint is an alleged breach of
contract. It was submitted that if the matter is not heard
immediately it will cause irreparable patrimonial damages to the
applicant. Having regard to the three considerations mentioned by
Fagan J it is quite clear that other litigants waiting for their
matters to be heard would be prejudiced if priority were afforded to
this application as they would have to wait longer. I thus echo the
words of Fagan J when he asked: ‘what distinguishes these two
applications from other matters?’ Actions or arbitration
proceeding for breach of contract occur commonly and are not given
priority. The prejudice that applicants are complaining about is the
possibility that they may suffer patrimonial damages, the damages if
any, sound in money. Assuming that such damages are irrecoverable,
that still does not distinguish these matters from many others
awaiting their turn on the ordinary roll. I furthermore find the
following reasoning by Fagan J to be applicable to this matter:








Take
for example all the cases wherein general damages are claimed in
delict including actions instituted under the Compulsory Motor
Vehicle Insurance Act 56 of 1972. Interest is not claimable on the
amount awarded and litigants suffer financially by delay in the
adjudication of their matters.
Moreover,
the fact that a litigant with a claim sounding in money may suffer
serious financial consequences by having to wait his turn for the
hearing of his claim does not entitle him to preferential treatment.

On
the other hand, where a person's personal safety or liberty is
involved or where a young child is likely to suffer physical or
psychological harm, the Court will be far more amenable to dispensing
with the requirements of the Rules and disposing of the matter with
such expedition as the situation warrants.

The
reason for this differential treatment is that the Courts are there
to serve the public and this service is likely to be seriously
disrupted if considerations such as those advanced by the applicants
in these two matters were allowed to dictate the priority they should
receive on the roll. It is, in the nature of things, impossible for
all matters to be dealt with as soon as they are ripe for hearing.
Considerations of fairness require litigants to wait their turn for
the hearing of their matters. To interpose at the top of the queue a
matter which does not warrant such treatment automatically results in
an additional delay in the hearing of others awaiting their turn,
which is both prejudicial and unfair to them. The loss that
applicants might suffer by not being afforded an immediate hearing is
not the kind of loss that justifies the disruption of the roll and
the resultant prejudice to other members of the litigating public.
Finally there is the question of prejudice to respondents. First
respondents were required to prepare their answering affidavits and
obtain the services of counsel for the hearing in great haste.’
4
{My
emphasis}








[14]
The applicant attempted to meet the above reasoning by arguing that
for the purpose of deciding upon the urgency of this matter I must
assume, that the applicant’s case was a good one and that the
respondent has unlawfully breached the November 2000 agreement and
that this Court has held that the urgency of commercial interests
may
justify the invocation of
Rule of Court 6 (12) no less than any other interests.
5








[15]
I have no qualms with that proposition of the law and accept it to be
correct, but this Court has also ruled that each case must depend
upon its own circumstances. The circumstances of the present matter
are
inter
alia
that
the agreement which the applicant wants to enforce is an agreement
which has been dormant for a period of over six years. In addition
the applicant has not put any facts before this court to justify the
conclusion that the damages that it will suffer are irrecoverable.
With reference to Rule 6(12)(b) it has been said by Coetzee J in
Luna
Meubel Vervaardigers (Edms.) Bpk. v Makin and Another (t/a Makin's
Furniture H Manufacturers
6:



Mere
lip service to the requirements of Rule 6(12)(b) will not do, and an
applicant must make out a case in the founding affidavit to justify
the particular extent of the departure from the norm, which is
involved in the time and day for which the matter be set down.’








[16] I am of the view
that in the circumstances of this case the commercial interest of the
applicant in this matter is not of such a nature as to render the
matter urgent. Hence, I decline to condone its non-compliance with
the Rules of Court or to hear this application as one of urgency.








[17] In the result, the
following order is made:



The application is struck
from the roll, with costs.













____________________



SFI Ueitele



Judge








APPEARANCES








APPLICANT R Heathcote SC
(with him CE Van der Westhuizen)



Instructed by Ellis
Shilengudwa Inc.








FIRST RESPONDENT TJ
Frank, SC (with him Dr S Akweenda)



Instructed by Conradie &
Damaseb



















1Salt
and Another v Smith
1990 NR 87 (HC).





21981
(4) SA 108 (C).





3At
pages 112-113.





4At
pages 113-114.





5Twentieth
Century Fox Film Corporation and Another v Anthony Black Films (Pty)
Ltd
1982 (3) SA 582 (W): Also see the case of Wallmart Stores
Inc v The Chairperson of the Namibian Competition Commission &
Others
unreported Judgment of the High Court of Namibia (per
Muller J et Smuts J) under case number A 61/2011 delivered on 28
April 2011.





61977
(4) SA 135 (W) at page 137F